NO. 4-03-0382

JUSTICE STEIGMANN delivered the opinion of the court:

In January 2002, petitioner, Lisa Ann Sherfey Hari,filed separate petitions, seeking (1) to dissolve her marriage torespondent, David Alan Hari, and (2) temporary custody of theparties' two children and child support. Later that month, thetrial court granted Lisa temporary custody of the children andordered David to pay $197 in biweekly child support. In April2002, the court ordered David (who was then in jail awaitingtrial on charges of first degree murder of Lisa's boyfriend andattempted murder of Lisa) to pay temporary child support out offunds that were then being held in David's attorney's trustaccount.

In January 2003, the trial court entered a judgmentdissolving the parties' marriage, and in February 2003, the courtentered a written order resolving the remaining issues. Inparticular, the court (1) granted Lisa custody of the parties'children and (2) reserved the issue of child support. Later thatmonth, Lisa filed a motion to reconsider, arguing, in pertinentpart, that the court erred by failing to order that David paychild support out of his nonmarital funds that were then deposited in bank accounts. In April 2003, the court denied Lisa'smotion, upon determining that it had no discretion to order Davidto use nonmarital funds to secure payment of child support.

Lisa appeals, arguing that the trial court erred byrefusing to order that David pay child support out of hisnonmarital funds. Because we agree with Lisa's argument, wereverse and remand for further proceedings.

Lisa and David were married in June 1989. During theirmarriage, they had two children, Zachary (born January 22, 1990)and Kyle (born May 8, 1996). In January 2002, Lisa filed apetition to dissolve the parties' marriage. Later that month,Lisa filed a petition, seeking temporary custody of Zachary andKyle and child support. Still later in January 2002, the trialcourt granted Lisa temporary custody of the children and orderedDavid to pay $197 in biweekly child support, which represented25% of David's biweekly net income. (The recommended statutorychild support amount for two children is 25% of the supportingparent's net income (750 ILCS 5/505(a)(1) (West 2000)).)

Following a hearing, in February 2002, the trial courtentered an order clarifying (1) the terms of David's visitationwith Zachary and Kyle and (2) that temporary child supportcommenced on January 26, 2002. Two days later, on February 10,2002, police arrested David for the first degree murder of Lisa'sboyfriend and the attempted murder of Lisa, which took place thatsame day at the parties' marital home. Later in February 2002,Lisa filed a petition, requesting, in pertinent part, that thecourt order that temporary child support be paid from funds thatDavid's mother (to whom he had assigned his power of attorney)had withdrawn from David's two accounts at Farmers MerchantsNational Bank (Farmers Bank).

In April 2002, the trial court ordered that David (1)not dispose of the bank account funds, which were then being heldin David's attorney's trust account, and (2) pay $197 in biweeklychild support from those funds. Later that month, David filed anaccounting, which indicated that (1) he had opened one of hisFarmers Bank accounts prior to the parties' June 1989 marriage(in May 1989, the funds in that account totaled $15,528); (2) inFebruary 2002, $17,000 was transferred from Farmers Bank toDavid's attorney's trust account; (3) the funds were latertransferred from the attorney's trust account to a money-marketaccount and a checking account at Roberts State Bank (RobertsBank); and (4) funds from the Roberts Bank accounts were beingused for temporary child support payments and other expenditures,such as David's medications, attorney fees, and life insurancepremiums.

In October 2002, Lisa filed a petition, seeking, interalia, temporary maintenance. The petition alleged that Lisa hadbeen unable to work since David shot her in February 2002.

At the start of the January 2003 hearing on Lisa'sdissolution petition, the trial court noted that (1) David hadbeen convicted of first degree murder and attempted murder andsentenced to an aggregate of 73 years in prison; and (2) David,who was then 40 years old, would have to serve at least 69 yearsof that sentence. The court then remarked that

"obviously[,] based on these facts[,] therewould be no child support ordered ***. Unless something should change, a reversal inthe conviction, *** there is nothing else Icould do at this point."

The parties then agreed that (1) Lisa be granted custody ofZachary and Kyle; and (2) Lisa be awarded the following: (a) themarital home, valued at $70,000, (b) a 2001 Silverado truckvalued at $15,000, (c) a 1988 Ford sedan valued at $500, (d) anindividual retirement account valued at $6,790, and (e) all ofthe marital personal property, except a dining room table,matching chairs, and several guns. The parties also stipulatedthat the Roberts Bank funds (which totaled approximately $7,000)constituted David's nonmarital property.

Lisa then presented evidence in support of herpetition. Lisa testified that prior to being shot, she operateda day-care business out of the marital home. She usually earned$150 per week. As a result of being shot, Lisa had (1) a bulletpermanently lodged in her head, (2) headaches, (3) short-termmemory loss, (4) problems with her speech, balance, and vision,and (5) post-traumatic stress. She had been unable to work sincethe shooting, and her parents had provided financial support forZachary and Kyle. Prior to his arrest, David worked forAlexander Lumber in Gibson City and had a weekly net incometotaling $300.

Jerri Sherfey, Lisa's father, testified that after theFebruary 2002 shooting, Lisa, Zachary, and Kyle lived with Jerriand his wife until early June 2002. Jerri explained that themarital home required extensive cleaning and many repairs as aresult of the shooting. Jerri and his wife also had providedfinancial assistance to Lisa and the children since the shooting.

After considering the evidence and counsels' arguments,the trial court declined to order David to pay child support. The court reasoned that (1) because David was in prison, he hadno net income; and (2) it could not order that child support bepaid out of David's nonmarital assets.

Later in January 2003, the trial court entered ajudgment dissolving the parties' marriage. In February 2003, thecourt entered a written order, resolving the remaining issues. In particular, the court (1) granted Lisa custody of thechildren; (2) reserved child support because David had beensentenced to prison "essentially for the rest of his life"; (3)awarded Lisa all of the marital property, except for several gunsand a dining room table and chairs; and (4) ordered her to paybank, credit card, and medical debts, totaling approximately$11,700. The court awarded David (1) the guns and dining roomtable and chairs and (2) the Roberts Bank accounts, which totaledapproximately $7,000, as his nonmarital property. The court alsoordered that David file joint income tax returns for 2001 and2002, and if he failed to do so, that the Roberts Bank money-market account funds be used to pay Lisa $400 in monthlymaintenance.

Later in February 2003, Lisa filed a motion toreconsider, arguing, in pertinent part, that the trial courterred by failing to order that David pay child support out of hisRoberts Bank accounts. In April 2003, the court denied Lisa'smotion, stating, in pertinent part, as follows: "The [c]ourtbelieves it has no discretion to order [David] to use anon[]marital bank account *** to secure payment of child supportbased on the previous temporary child support order of $197.00every other week."

This appeal followed.

II. THE TRIAL COURT'S REFUSAL TO ORDER DAVID TO
PAY CHILD SUPPORT OUT OF NONMARITAL FUNDS

Lisa argues that the trial court erred by refusing toset aside David's nonmarital Roberts Bank accounts and to orderhim to pay child support out of those funds. We agree.

This issue requires a two-step inquiry. First, thetrial court must determine if it should order the noncustodial,imprisoned parent to pay child support, and if so, how much. Second, the court should determine whether it should set asideany assets, including the noncustodial parent's nonmaritalassets, to assure payment of the child support obligation.

Incarceration of the noncustodial parent does notautomatically relieve that parent of the obligation to supporthis child. People ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087,1089, 568 N.E.2d 436, 437 (1991); In re Marriage of Burbridge,317 Ill. App. 3d 190, 193, 738 N.E.2d 979, 982 (2000). Instead,the decision whether to order the imprisoned parent to pay childsupport lies within the trial court's discretion. Burbridge, 317Ill. App. 3d at 193, 738 N.E.2d at 982. In exercising itsdiscretion, the court should consider all relevant factors,including the following: (1) the assets of the incarceratedparent; (2) the reason the parent entered prison; (3) the lengthof incarceration; and (4) the potential for work release. Burbridge, 317 Ill. App. 3d at 193, 738 N.E.2d at 982. Inaddition, this court has noted that the trial court's discretiongenerally should be guided by the principle that child supportobligations should not be suspended or terminated if theincarcerated, noncustodial parent has available assets. Nein,209 Ill. App. 3d at 1089, 568 N.E.2d at 437.

In this case, the trial court's remarks at the January2003 hearing on Lisa's dissolution petition indicate that it didnot recognize that it had discretion to order David to pay childsupport. Instead, the court apparently thought that the merefact that David would be imprisoned for a long period of timeprecluded it from ordering him to pay child support. As ourprevious discussion shows, the court was mistaken.

Moreover, had the court exercised its discretion andrefused to order that David pay child support, we would concludethat such decision constituted an abuse of discretion. Weacknowledge that David was serving a 73-year sentence and was noteligible for work release. However, more important, the recordshows that at the time of the January 2003 hearing, David hadnonmarital assets totaling approximately $7,000. In addition,David was imprisoned because shortly after Lisa sought to divorcehim and the trial court granted her temporary custody of theirchildren, he tried to kill her and succeeded in killing herboyfriend. Thus, by his acts, David rendered himself unable toprovide for Zachary and Kyle, and further, by inflicting upon themother of his children both physical and emotional trauma, heseverely limited her ability to provide for them as well. Underthese circumstances, David should neither benefit from his crimesnor be insulated from his obligation to support Zachary and Kyle. We thus conclude that the court should have exercised itsdiscretion by ordering David to pay child support.

As to the amount of child support, both parties seemedto agree that the amount set forth in the temporary child supportorder ($197 biweekly) constituted an appropriate amount. Indeed,David does not argue otherwise on appeal.

B. Whether To Set Aside Assets To Assure
Payment of the Child Support Obligation

Lisa argues that the trial court erred by refusing toset aside David's nonmarital funds then deposited at Roberts Bankand order that he pay child support out of those funds. Weagree.

As earlier stated, if the trial court orders that theincarcerated, noncustodial parent pay child support, it must thendetermine whether to set aside any assets, including thenoncustodial parent's nonmarital assets, to assure payment of thechild support obligation. Section 503(g) of the IllinoisMarriage and Dissolution of Marriage Act provides, in pertinentpart, as follows:

"The court[,] if necessary to protectand promote the best interests of thechildren[,] may set aside a portion of thejointly or separately held estates of theparties in a separate fund or trust for thesupport, maintenance, education, and generalwelfare of any minor *** child of theparties." 750 ILCS 5/503(g) (West 2000).

A need for such protection arises when the noncustodial parent iseither "unwilling or unable to make child support payments." Inre Marriage of Petersen, 319 Ill. App. 3d 325, 343, 744 N.E.2d877, 890 (2001). Thus, section 503(g) explicitly allows thetrial court to set aside in a separate fund a portion of thenoncustodial parent's nonmarital or marital assets to assurepayment of his child support obligation if that parent is eitherunwilling or unable to make child support payments.

In this case, the trial court erroneously believed thatit had no discretion to set aside David's nonmarital bank accountfunds to assure payment of his child support obligation. Therecord here supported a determination that due to David'sincarceration, he was unable to make child support payments. Thus, under the particular circumstances of this case, the courterred by refusing to set aside the nonmarital funds in David'sbank accounts to promote and protect Zachary and Kyle's bestinterest and assure payment of David's child support obligation. To the extent that setting aside those funds places a burden onDavid or means he is unable to partake of prison fineries, we arenot troubled. The focus should be on assuring that the childrenare supported, not on making David's imprisonment easier. Accordingly, we reverse and remand for further proceedingsconsistent with the views expressed herein.

As a final matter, we reject David's contention thatthe trial court properly refused to set aside his nonmaritalfunds because (1) section 505(a)(1) "specifically states thatchild support is to be paid from the net income of the supportingparty" (750 ILCS 5/505(a)(1) (West 2000)); and (2) Lisa does notclaim that his nonmarital assets produce any income. Davidmisconstrues section 505(a)(1). That section directs the trialcourt to determine the minimum child support award by taking afixed percentage of the supporting party's "net income." Section505(a)(1) does not limit what assets the trial court can reach toassure that the child support award is satisfied.

For the foregoing reasons, we reverse the trial court'sjudgment and remand for further proceedings.

Reversed and remanded for further proceedings.

KNECHT, P.J., and APPLETON, J., concur.